Where claimant, alleging herself to be the "child" of insured worker born
in lawful wedlock, appealed the Secretary's denial of her application for
child's insurance benefits, held, that although Virginia law
presumes legitimate a child born in lawful wedlock, the uncontroverted
medical evidence (showing that bilateral atrophy of the testes resulted in
insured worker's total sterility from 1961 until after the probable time
of conception), combined with the insured's denial of paternity and other
corroborative testimony, was sufficient to rebut presumption of
legitimacy, and constituted substantial evidence to support Secretary's
determination.

MACKENZIE. District Judge: This matter proceeds upon the complaint
of plaintiff, an infant, that she has been improperly denied benefits
arising to her through the death of her alleged father, a social security
wage earner.

The plaintiff's application was filed March 20, 1970, was denied by the
Hearing Examiner on March 15, 1971, and was further denied by the Appeals
Council on March 13, 1972. This district court proceedings under 42 U.S.C.
§ 405(g) is timely filed.

Nellie S. Gatling, mother of plaintiff, and Norman W. Gatling, were
married October 7, 1956. During their marriage, on April 8, 1968, the
plaintiff, Cathy M. Gatling, was born. Norman W. Gatling was awarded a
final decree of divorce July 7, 1969. He died March 28, 1970.

The Social Security Act provides for the payment of monthly insurance
benefits to the natural child, stepchild, or adopted child of the worker.
To determine whether a child has the necessary relationship as "a child"
of the wage earner to be eligible for benefits, the law of Virginia is to
be applied in this case.

In his application for social security retirement benefits, filed
February 18, 1969, Gatling reported that his wife, Nellie, had run off
with another man and that Cathy was not his child. His bill of complaint
seeking a divorce denied his paternity, and the final decree of July 7,
1969, joined in and not objected to by his wife's attorney, specifically
stated that no children were born of the marriage to Nellie S.
Gatling. No alimony or child support was sought or awarded.

There is corroborative testimony -- from witnesses who repeat the wage
earner's denial, prior to his death, that Cathy was his child, including
sworn testimony of Mrs. Gatling's sister, that no children were born of
the marriage of the Gatlings. Likewise, there is evidence which would
corroborate Mrs. Gatling's claim that Cathy was Norman W. Gatling's
child.

The medical evidence is overwhelming and controverted. In 1961, years
before the plaintiff was born and then again in 1968, eight months before
plaintiff was born, the deceased wage earner was examined by Dr. John W.
Hollowel, a Urologist. On both occasions Dr. Hollowel found "bilateral
atrophy of the testes" and "total absence of sperm" in the semen of
plaintiff's alleged father. He further concluded unequivocally and
positively that the deceased wage earner was "completely sterile" and
"unable to father a child at any time since my first examination of him in
May of 1961 [through September 26, 1968]."

To receive Social Security benefits the plaintiff must show that she is
entitled to inherit personalty of the deceased wage earner under the
Virginia intestacy law. 42 U.S.C. § 416(e) and § 416(h)(2)(A). Only
adopted or legitimate children may take under applicable statutes. VA.
CODE ANN. § 64.1-11 (1968 Repl. Vol.). In that context Virginia case law
has developed a strong presumption in favor of the legitimacy of a child
born in wedlock, but this presumption may be rebutted by proof of
impossibility. Gibson v. Gibson, 207 VA. 189, 153, S.E. 2d 189
(1967); Bowles v. Bingham, 2 Mumf. (16 Va.) 442 and 3 Mumf. (17
VA.) 599 (1811).

Plaintiff relies on Lucas v. Williams, 218 Md. 322, 146 A.2d 764
(1958) for the proposition that impossibility requires medical proof of
sterility on the very date of the alleged act of intercourse or a biopsy
of the testes. In Lucas it could not be shown that there was a
complete absence of sperm in the seminal fluid.

In Lucas the Maryland court quoted with approval the following
test from Schatkins, Disputed Paternity Proceedings (3d ed.):

"The likelihood of sterility is progressively greater the lower the
spermatozoon count. Below 60 million a man would be relatively infertile.
But . . . the only absolute proof of sterility is . . . complete absence
of spermatozoa from the semen due to atrophy" [Emphasis supplied.]

In the case at bar, the test is met. Here there is direct, uncontroverted
medical evidence that bilateral atrophy of the testes of the deceased wage
earner caused "total absence f sperm" from 1961 until after the
probable time of conception. These facts when combined with other
corroborative testimony were clear and convincing evidence upon which the
trier of fact could conclude that it was impossible for the deceased wage
earner to have fathered the plaintiff.

We conclude that there is substantial evidence to support the findings of
the Secretary of Health, Education and Welfare.

The motion for summary judgment is GRANTED. The complaint is
dismissed.